Doran v Director of Public Prosecutions; Brunton v Director of Public Prosecutions

Supreme Court of NSW|2019-05-29

In proceedings 2019/13069 S Walsh (Appellant) M England / M Cobb-Clark (Respondent)

Solicitors: In proceedings 2018/387743 Wayne Boom, Boom Lawyers (First Appellant) Keely Boom, Boom Lawyers (Second Appellant) Office of the Director of Public Prosecutions (Respondent)

In proceedings 2019/13069 Lisa Stone Lawyer (Appellant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2018/387743; 2019/13069 Decision under appeal Court or tribunal: Local Court Jurisdiction: Crime Date of Decision: 16 November 2018 Before: Magistrate D R Dick File Number(s): 2018/18603; 2018/19197; 2018/19198; 2018/20633

Judgment

HER HONOUR: Part 11 of the Crimes Act 1900 (NSW) is headed "Criminal responsibility - defences". Division 3 was inserted into Pt 11 by the Crimes Amendment (Self-defence) Act 2001 (NSW) s 3, Sch 1, and commenced on 20 February 2002. It is concerned with self-defence. Section 418, which appears in Div 3, provides: "418 Self-defence - when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them."
By s 419, in criminal proceedings in which the application of Div 3 is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the accused person ("the defendant") did not carry out the conduct said to constitute the offence in question in self-defence.
Where an issue under s 418 is raised, two questions arise for determination. They are: 1. has the prosecution proved beyond reasonable doubt that the accused did not believe that the conduct said to constitute the offence was necessary for one (or more) of the four purposes specified in subss (2)(a)-(d)? and 2. has the prosecution proved beyond reasonable doubt that the conduct was not a reasonable response in the circumstances as perceived by the accused?
Proof by the Crown beyond reasonable doubt of one or the other will defeat any defence of self-defence. That is, an affirmative answer to either question will be sufficient for the Crown to have proved that the conduct was not carried out in self-defence.
An alternative way of framing the questions, avoiding the awkwardness of requiring proof of a negative, is that proposed by Howie J in R v Katarzynski [2002] NSWSC 613 at [22]: "(i) is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and, (2) if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them." A negative answer to either question will be sufficient for the prosecution to have proved that the conduct was not carried out in self-defence.
In these proceedings each plaintiff appeals pursuant to s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act") against a conviction in the Local Court. Defences of self-defence had failed. An appeal under s 52 is permitted only on a ground that involves a question of law alone.
The principal issue in the appeals is whether, in the determination of the second question that arises under s 418 (whichever way it is formulated), it is necessary or permissible for the tribunal of fact to take into account intoxication of the accused person, specifically, in the assessment of the reasonableness of the response of the defendant in the circumstances as he or she perceived them.

Context

The question arises in the following context. In early 2018 the three plaintiffs (Bailie Doran, Jordan Weeks and Chrystian Brunton, together with Rheece Doran) were charged with various offences, including affray, alleged to have been committed in the early hours of 1 January 2018. Each plaintiff raised a defence of self-defence under s 418 of the Crimes Act. After a lengthy hearing in the Local Court (15 non-consecutive days) in 2018, on 16 November 2018 the magistrate dismissed all charges except the counts of affray. In respect of those counts, he rejected the defence of self-defence and convicted each plaintiff. He subsequently imposed sentences, which are not in issue in these appeals.
The magistrate initially delivered reasons orally on 16 November. The reasons were transcribed. The magistrate commenced the process by saying: "… What I'm about to do is summarise my judgment, making some reference to the matters that I have considered and addressed and then spending some time on the actual charges. The finished product still has to be proofread and that will happen next week. A copy will then be electronically forwarded to each of the practitioners." What the magistrate then did was provide a fairly detailed summary of a lengthy (71 page) written judgment he subsequently delivered, which is dated 16 November 2018. Initially some criticism was directed at the magistrate for taking this course, but counsel did not identify any significant differences between the transcript of the reasons given orally and the written judgment. Given that the parties were entitled to be put in a position in which they could understand the reasons for the magistrate's decision, and that, as the magistrate explained, the written judgment was not, on 16 November 2018, in a state of preparation ready for publication, and that the judgment was lengthy, the course taken by the magistrate seems to me to have been appropriate and sensible. In any event, in the end, no express complaint was made about the procedure. It is the written judgment that is the subject of these appeals.
By summons filed on 17 December 2018 (and subsequently amended on 22 February 2019) the plaintiffs Bailie Doran and Jordan Weeks appealed against their convictions. They purported to identify three questions of law arising from the judgment. By summons filed on 14 January 2019 (and also subsequently amended on 22 February 2019) the plaintiff Chrystian Brunton also purported to identify the same three questions of law, and a fourth. All nominated the Director of Public Prosecutions ("the DPP") as the defendant. At the hearing of the appeal, the three common questions of law were reduced to the single question formulated above. Chrystian Brunton maintained a fourth question, not contained in the summons, but (apparently) notified to the DPP, to which I will come.
To the extent that either summons identified an asserted error of law in the decision of the magistrate, it was framed as: "The magistrate incorrectly excluded the role of self-induced intoxication in the plaintiffs' establishment of their defence of self-defence."

Factual background

The proceedings in the Local Court arose out of events that took place in a South Coast country town beginning late in the evening of 31 December 2017 and spilling over into the early hours of the following morning, 1 January 2018.
The magistrate recounted in some detail the evidence that had been given. At times he indicated that he did not accept the evidence, but, more often, he made no explicit finding. I proceed on the basis that, unless he stated otherwise, he accepted the evidence that he recorded. The following account of the relevant factual background has been pieced together from the evidence recounted by the magistrate, apparently with acceptance.
The plaintiffs were all young men aged 18 or 19. They had been consuming alcohol during all or most of the day of 31 December. During the evening they, with a number of others, were at the home of the Doran family in Clarke Street, and continued to consume alcohol. They were intoxicated.
At a nearby address (Imlay Street, the home of the Hadley family) a group of adults (and some children) were also marking the end of 2017. These included the host, Murray Hadley, John Hogan, Steve Heffernan and Peter Halkett. They, too, were consuming alcohol and some of them, at least, were intoxicated.
Some children associated with the party at Imlay Street had been out on their bicycles. They returned to Imlay Street and complained that their bicycles had been stolen. For reasons not explained the adults (or, at least, Murray Hadley) suspected the young men at the Doran household of the theft. Mr Hadley rode a bicycle to the premises, and entered violently. A gate post to the property was damaged. It is a clear inference that Mr Hadley was responsible for the damage. Mr Hadley entered the home and assaulted a teenage girl (Manda Tomicic, aged 16) and boy (Brendan Collins, age not stated). Mr Hadley did this by lifting them by the throat and forcing them against the wall, and squeezing them by the throat. He was shouting, demanding to know where the bicycles were.
The young men at Clarke Street retaliated and forcibly ejected Mr Hadley from the home. They punched and kicked him. Mrs Wills attempted to break up the fight and was struck by Mr Hadley.
Mr Hadley's son Harry attempted to telephone his father and was concerned about him when the phone was not answered. Several of the adult men at Imlay Street decided to go in search of Mr Hadley. Conflicting evidence was given by them about the purpose of the excursion: some said it was to check on Mr Hadley; others that it was to retrieve the bicycles. In any event, a group of men left Imlay Street in a utility driven by Mr Hogan's daughter Kelsey. Included in the group were Harry Hadley, Peter Halkett, John Hogan and Steve Heffernan. Ms Hogan drove to Clarke Street. By the time the group arrived Mr Hadley was walking up the road towards his home. He had suffered a significant injury.
On the arrival of the utility, another fight took place. One of the men - a large man - grabbed Jordan Weeks around the waist; Brendan Collins went to his assistance. Both sides were "throwing punches". Violent and abusive language was used. The precise location of the commencement of this melee is not clear; what is clear is that it moved into the road. One of the young men was wielding the wooden stock of a spear gun, and more violent and abusive language was used with some of the young men threatening the use of firearms, and threatening to kill the men. The young men surrounded the utility. One of them threw a bottle that shattered the windscreen of the utility.
The Imlay Street adults began to retreat. The Clarke Street young men pursued them, continuing the physical and verbal violence, including by the use of the spear gun frame.
Police were called and attended. Some of the plaintiffs were subsequently interviewed by police, and the interviews were electronically recorded. Transcripts of the interviews have not been provided to this Court. Some excerpts are contained in the judgment of the magistrate. Eventually, four of the Clarke Street group were charged with various offences. Bailie Doran was charged with larceny of three bicycles, with obstructing an officer of police in the execution of his duty, and with being armed with intent to commit an indictable offence (assault). Chrystian Brunton was charged with assault occasioning actual bodily harm in company, and being armed with intent to commit an indictable offence (intimidation), this being laid as a "back up" charge to the charge of affray. Rheece Doran was charged with resisting police in the execution of their duty. All were also charged with affray, as was Jordan Weeks. It appears that self-defence was pleaded as a defence to all charges. Many witnesses were called in the prosecution case. None of the plaintiffs gave evidence.
The magistrate dismissed all charges except the charges of affray. The reason he gave for dismissal of the charges other than affray was "reasonable doubt", which may be taken to mean that he found the charges were not proved to the criminal standard.
The magistrate rejected the defence of self-defence and found the offence of affray proved in each case. Under the heading "Self-Defence" he said: "209 … When self-defence is raised the Court must focus on whether each accused believed that what he did was necessary and then consider whether what he did do was a reasonable response in the circumstances at the time. It was conceded by the Prosecution that at times each accused acted under the extended definition of self-defence. 210 The reasonableness of the response must be determined by reference to his perception of the relevant circumstances. Three men alighted from the ute, they fanned out and either ran or walked towards the group of youths. They proceeded past the escaping Murray [Hadley] and advanced on the group of youths. The group of fathers were large men silhouetted against the headlights. … 213 With unashamed honesty Peter [Halkett] conceded 'What we did may have looked like we were going there as a lynch mob with a mission to seek revenge. The two groups may have completely missed each other group's motive.' He also said 'When we got out of the car we were in attack mode to protect Murray'. 214 Self-defence can be raised in a number of ways. In the present case because the accuseds did not give evidence, self-defence was raised in an alternate manner by Counsel in cross-examination. While it is not essential that there be evidence from an accused it then becomes a matter for the court to draw inferences regarding the beliefs and perceptions of each accused. 215 During the course of the proceedings I gave a ruling that the evidence heard in the case against Chrystian would be confined to events after the ute arrived. But that does not exclude Chrystian's own version given in the ERISP [the electronically recorded interview] from being deliberated. … 217 Having made those observations regarding Chrystian's earlier conduct there is further evidence of his involvement in an Affray after the ute arrived. He admitted he chased Murray up the road. He admitted to following the group of fathers along Clarke Street and 'around the corner (into Imlay Street)' …"
The magistrate then reviewed various aspects of the evidence concerning the individual participation of the plaintiffs. His dispositive findings on the count of affray were as follows: "223 I find there were countless opportunities for Chrystian, Bailie, Rheece, and Jordan to desist. They could have discontinued long before they did. I find that each of them elevated their conduct above self-defence. Each one of the accused was positively identified a long way from 55 Clarke Street. 224 Some members of the group of youths possessed weapons. 225 The group of youths were asked on numerous occasions by civilians and Police to calm down. Their demeanour was observed long after the physical exchanged ceased. They were described as hostile, agitated and aggressive. 226 There is clear evidence the group of fathers were backing off, withdrawing down Clarke Street, down Imlay Street and into Grant Street. As the group of fathers retreated the group of youths rushed them on more than one occasion. 227 After the physical exchange ceased the group of youths continued to voice threats. 228 A smaller contingent of the group comprising each accused was seen in the vicinity of the Hadley home threatening to kill the Hadley's (sic). 229 The group of youths could have shown restraint and held their ground but chose not to. 230 It wasn't long before there became an aggressive group and a defensive group. What started out as defence by the group of youths turned into attack. 231 There was very strong evidence of retribution consistent with extracting revenge." (italics added)
He accordingly convicted each of the plaintiffs of the offence of affray.

The appeals

A person convicted in the Local Court has at least three avenues of appeal open, as provided by the Appeal and Review Act.
The first and most obvious is an appeal (as of right) to the District Court: s 11(1). Such an appeal is by way of re-hearing on the basis of evidence given in the Local Court (subject to presently irrelevant exceptions). The second avenue of appeal is s 52, by which an appeal lies to this Court, as of right, but only on a ground that involves a question of law alone. The third avenue, by s 53, is an appeal to this Court on a question of fact, or a question of mixed fact and law, but only by the leave of this Court.
Each plaintiff has availed himself of the s 52 option: that is, each has chosen to appeal to this Court on a basis that involves a question of law alone. Each has bypassed the District Court option, by which a full review of the evidence in the District Court would be available, and each has bypassed the s 53 option, by which, if leave were granted, questions of fact and questions of mixed fact and law could be raised. Accordingly, the appeals are limited to asserted errors with respect to questions of law.
By Pt 51B.6 of the Supreme Court Rules 1970 (NSW), an appeal under s 52 is to be filed within 28 days of the date of the decision. Each of these appeals was filed out of time, by a few days. The plaintiffs seek extensions of time, as permitted by r 51.6(3). No objection is taken by the DPP, and leave should be granted.
The questions of law identified in each summons were not framed with precision. In the first, inconsistency in the facts found was asserted. Specific reference was made to [223] and [230] of the judgment (set out above). As an alternative, the ground was advanced as "one about the nature and content of the magistrate's duty to give reasons".
The second question, which was abandoned by all plaintiffs, raised a question of whether the magistrate was obliged to "address evidence of a second phase of attack (or perceived attack)". The third stated question of law was said to be a "misdirection on the law of self-defence".
In the summons filed by Chrystian Brunton, a fourth question was stated concerning the approach taken by the magistrate to questions that had arisen with respect to the police investigation that followed the events of 1 January. This question was not pursued on the hearing. In its place an argument was made that the magistrate, having made a ruling that certain evidence would not be used against Mr Brunton, in fact did use that evidence.
At the outset of the hearing counsel for Bailie Doran said that "the primary point of appeal between all plaintiffs" was the "misdirection on the law of self-defence". No counsel disputed the assertion that that was the primary point.
The "misdirection", as I understand the argument, was said to be that the intoxication of the plaintiffs could not be taken into account in the assessment, under the suffix to s 418(2) of the Crimes Act, of the reasonableness of the plaintiffs' conduct - that is, the determination of the second question as stated in Katarzynski.
The argument, it seems to me, involves two propositions. The first is that the intoxication of a defendant is a relevant consideration in the assessment of the reasonableness of the conduct; the second is that the magistrate failed to take into account intoxication in his assessment of reasonableness. That is the error of law on which the appeals relied. It will be necessary, in due course, to return to the reasons given by the magistrate.

Relevant authority

All parties referred to the same limited number of cases, principally R v Conlon (1993) 69 A Crim R 92 and Katarzynski. Each was a decision of a judge of this Court made in the course of a criminal trial.
The first to be considered is the decision of Hunt CJ at CL in Conlon. At the outset, it is as well to observe that Conlon was decided before the enactment of Pt 11 Div 3 of the Crimes Act. The defence of self-defence was governed by the common law, which is not replicated in the current legislation.
Hunt CJ at CL was presiding without a jury over a criminal trial. Mr Conlon faced two counts of murder. He lived alone in remote location, where he grew marijuana plants. On the night in question Mr Conlon's smoked "a considerable amount of marijuana", and consumed "a considerable amount" of alcohol. During the night two intruders (the alleged victims) went to the property, intending to steal Mr Conlon's marijuana plants. Mr Conlon heard them and went outside to investigate. A violent fight ensued, in which Mr Conlon was assaulted. He ran inside and obtained a loaded rifle which he fired at the two intruders. Several bullets struck one of the intruders in the chest and head, which, unsurprisingly, caused his death. By this time Mr Conlon had exhausted his supply of bullets and so he used the rifle to hit the other intruder, until the rifle broke. He then attacked that intruder, first with an axe, and then with a knife. He also died, and, a little later, Mr Conlon attempted to bury him.
The common law in respect of self-defence in a trial for murder was stated by the High Court in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; [1987] HCA 26. As under Pt 11 Div 3, where the evidence discloses a possibility that a fatal act was done in self-defence, the onus lay on the prosecution to negative self-defence: p 657. In order to do so, it was necessary that the prosecution prove that the defendant did not believe on reasonable grounds that the act causing death was necessary in self-defence. There were two parts to the test:

that the defendant believed that the act was necessary to defend himself or herself; and
that the belief was based on reasonable grounds. If the prosecution disproved either, self-defence was negatived.

In Conlon, with respect to the first question, the prosecution suggested that the two intruders were attempting to escape, but Hunt CJ at CL was not satisfied that, even if that were so, the prosecution had shown that Mr Conlon knew that fact. That was relevant to both questions, more significantly to the first. In reaching the conclusion that he did his Honour took into account Mr Conlon's degree of intoxication by marijuana and alcohol. He said: "The Crown does, of course, have to eliminate any reasonable possibility that the accused's perception was reduced by reason of his intoxication." (p 96)
In respect of the second part of the test, whether the prosecution had proved that any belief held by Mr Conlon was not based on reasonable grounds, Hunt CJ at CL also took into account Mr Conlon's level of intoxication. He rejected an argument advanced by the prosecution that self-induced intoxication ought not to be taken into account on that question. He said: "In my opinion, therefore, I should take into account the voluntarily induced intoxication of the accused in the present case - insofar as it may have affected either his appreciation of the gravity of the threat which he faced or the reasonableness of his response to that danger - in determining whether the Crown has established that there were no reasonable grounds for a belief by him that it was necessary in self-defence to fire the bullets into the head of [the first victim] which in fact caused his death, with the intention of at least inflicting grievous bodily harm upon him. I am not satisfied beyond reasonable doubt that there were no such grounds. In my view, it is reasonably possible that the circumstances in which the accused found himself - as he in fact perceived those circumstances to be, affected though that perception may have been by intoxication - created such a fear in the accused that these two men (and perhaps others) were going to kill him if they could as to have justified the extreme action which the accused took when he killed [the first victim]." (pp 101-102, italics added)
The other decision to which reference was made is Katarzynski. The notable difference is that Katarzynski was decided under the law of self-defence as stated in Pt 11 Div 3 of the Crimes Act. The statutory provision is a significant departure from the common law. Where the second part of the test at common law was whether the prosecution had proved that the defendant's belief was not based on reasonable grounds, under s 418 the second question is whether there is a reasonable possibility that what the defendant did was a reasonable response to the circumstances as the defendant perceived them. That is an important difference. It necessarily imports into the assessment of reasonableness the state of mind - that is, the perception - of the defendant. But, as will be seen, the assessment of the reasonableness of the response remains as objective one.
Katarzynski was a jury trial for murder by shooting. There was no issue that Mr Katarzynski had committed the act that caused death, and no issue that he was intoxicated. The prosecution accepted that a defence of self-defence was open. The question which arose was the direction to be given to the jury concerning the assessment of reasonableness.
Howie J declined to follow Conlon (at [20]) on the basis of the alteration wrought by the enactment of Pt 11 Div 3. He held: "26 But in my opinion one matter that must be irrelevant to an assessment of the reasonableness of the accused's response is his or her state of sobriety. As was pointed out in McCullough, it is logically incongruous 'to contemplate the proposition that a person's exercise of judgment might be unreasonable if he was sober, but reasonable because he was drunk'. Apart from Conlon, I am not aware of any other decision that has held that intoxication is a matter relevant to an evaluation of the reasonableness of the conduct or belief of a person. It is not relevant at common law to an evaluation of the accused's response to provocation or the belief of a reasonable person as to the dangerousness of the accused's actions for the offence of manslaughter."
The reference to McCullough was a reference to the decision of the Tasmanian Court of Criminal Appeal in McCullough v R [1982] Tas R 43; (1982) 6 A Crim R 274, to which Hunt CJ at CL had also referred. McCullough was determined by reference to s 46(2) of the Tasmanian Criminal Code. Subsections (1) and (2) of that provision need to be set out: "46(1) A person unlawfully assaulted, not having provoked such assault, is justified in repelling force by force if the force he uses is not meant to cause death or grievous bodily harm, and is no more than is necessary for the purpose of self-defence. (2) A person so assaulted as aforesaid is justified in causing death or grievous bodily harm to his assailant if, from the violence with which the assault was originally made, or with which the assailant pursues his purpose, he acts under a reasonable apprehension that his assailant will cause death or grievous bodily harm to him, and if he believes on reasonable grounds that he cannot otherwise preserve himself therefrom." (italics added)
In McCullough, the Court quoted from directions given to the jury in the trial under appeal, and said: "281 … In our opinion the learned trial judge in these passages properly directed the jury that the test of reasonableness under s 46(2) is a subjective test, in the limited sense that the question to be considered by the jury was whether it was reasonable for the applicant in all his then circumstances to hold the relevant apprehension and to have the relevant belief … It is true that the learned trial judge did not tell the jury that one such circumstance to be taken into account was the applicant's state of partial intoxication (if they thought he was in that state), but since that was one of his then circumstances the jury would have taken it into account, and it would have been proper to do so, in relation to the issue whether the applicant in fact held the apprehension and the belief to which the subsection refers. But it would have been a wrong direction to tell the jury that they could or should take such state of intoxication into account in deciding whether or not the applicant's apprehension and belief, if he held them, were reasonable or held on reasonable grounds. The criterion of reasonableness is in its nature an objective one, and in our view it would be incongruous and wrong to contemplate the proposition that a person's exercise of judgment might be unreasonable if he was sober, but reasonable because he was drunk …" (italics added)
Howie J expressly adopted that last, italicised, proposition. His Honour accepted (and I respectfully agree) that the first question under s 418 (whether the defendant believed that his or her conduct was necessary for one of the stated purposes) is to be determined entirely subjectively, having regard to all of the personal characteristics of the defendant (including intoxication). The second question, his Honour said, is determined objectively, by reference to the reasonableness of the defendant's conduct - although in the light of the circumstances as (subjectively) perceived by the defendant.
That, in my opinion, leaves dangling one factual issue: what were the circumstances perceived by the defendant? That, too, in my opinion, is determined (to the extent that the evidence permits) subjectively - again having regard to the personal characteristics of the defendant (including intoxication).
With respect to Howie J I am unable to agree that the italicised passage in McCullough casts significant light on the present issue. It was directed, not to the reasonableness of the conduct of Mr McCullough, but to whether any apprehension or belief that he had was reasonable, or was based on reasonable grounds. Under s 46(2) the issue of reasonableness went to the perception or belief of the defendant; under s 418 reasonableness arises only in relation to the conduct of the defendant.
Nevertheless, I am unable to see how intoxication can be woven into the objective question of the reasonableness of the defendant's conduct in the application of s 418. The question is not the reasonableness of the defendant's conduct at large. Nor is it, as is often the case, the reasonableness of the defendant's conduct "in all of the circumstances". The question is the reasonableness of the defendant's conduct in the circumstances as perceived by the defendant. I accept that intoxication is relevant in the identification of the defendant's perception. The question of intoxication is spent once it has been taken into account on that question. There is no room for any intrusion of intoxication into the assessment of the reasonableness of conduct. That is an objective test, although to be applied in the light of the subjective perceptions of the defendant.
The plaintiffs never clearly identified how they suggested that intoxication could be taken into account in the assessment of the reasonableness of their conduct. In lengthy written submissions, much was made of the proposition that they were entitled to consume alcohol in the sanctuary of their (or their friends') home. That is doubtless correct, but it has no bearing on any issue that arises in this appeal. The only construction that can be put on the submissions is that they propose that, because they were intoxicated, some licence should be afforded to them to behave with impunity in a way in which they would not be permitted (without consequence) to behave if unintoxicated. Indeed, counsel did not shrink from that proposition when it was put (Tcpt 10). On their argument, intoxication went not only to their perceptions, but also to the reasonableness of their conduct.
I reject the notion. Reasonableness is an objective assessment. Defendants, in proceedings where s 418 is raised, are potentially given the benefit of their intoxication in the determination of two things - whether they believed that it is necessary to do what they did, and their perception of the circumstances. They are not entitled to the benefit of intoxication in the assessment of the reasonableness of this conduct in the light of that perception. It is in that way that the pithy observations of the Tasmanian Court of Criminal Appeal in McCullough are apposite to the present case. Indeed, they are more apposite to the assessment of the reasonableness of conduct than to the assessment of whether the defendant has reasonable grounds for a belief.

The reasons of the magistrate

The magistrate did not explicitly address the questions posed by s 418 of the Crimes Act as stated in Katarzynski. He did not find that there was, or was not, a reasonable possibility that any of the plaintiffs believed that his conduct was necessary for one of the purposes stated in s 418(2). Had he done so, he may well have found that there was a reasonable possibility that one or more of the plaintiffs did, in the early stages of the confrontation with Mr Hadley, so believe. Some portions of the interviews that are extracted in the judgment provide a basis for a view that the plaintiffs, or one or more of them, believed that it was necessary, on Mr Hadley's intrusion into the Doran home, and his assault on the two teenagers, to deal with him with some force. But the affray did not begin with the invasion of the Doran home by Mr Hadley. There is no defining moment at which it could be said that the affray began, and the magistrate made no such finding. It may reasonably be said to have begun with the arrival of the utility from Imlay Street, and the exit from the utility of the adult men. At that point, again, it may have been possible to find that the plaintiffs believed that it was necessary to respond with violence. The evidence quoted in [213] ([23] above), of the magistrate's reasons could have supported such a finding. The violence then continued in the street. It is not possible, on the findings of the magistrate, to say how or by whom the violence in the street was initiated. What is clear on those findings is that, even after the Imlay Street men were in retreat, the Clarke Street group, including each of the plaintiffs, continued to inflict considerable violence, to use weapons and utter threats of serious harm.
It is possible that, had the magistrate directed his attention to it, he would have found that the prosecution had not excluded the reasonable possibility that, in the early stages of the confrontation, the plaintiffs, in their intoxicated state, did believe that it was necessary to conduct themselves as they did. In that case, the first Katarzynski question would have been answered favourably to the plaintiffs. That would leave the second question for determination, the reasonableness of that response. The magistrate did not reject self-defence at that stage. He rejected self-defence at a later stage, when the fracas had left the Doran premises and was in the street, and - importantly - the Imlay Street adults were retreating. That is when the magistrate found that the plaintiffs "elevated their conduct above self-defence" (at [223]). That is when he determined that the Clarke Street young men turned from defence to attack (at [230]). The italicised passages in the extracts from the judgment at [24] above amount to a finding that the conduct of the plaintiffs was not reasonable, even in the circumstances as they perceived them. It may also be interpreted as a finding that the plaintiffs did not, then, believe that they had to repel the Imlay Street men with violence.
It is true that the reasonableness of the plaintiffs' conduct has to be assessed in the light of their perception of the circumstances, so far as that could be ascertained.
As indicated, the plaintiffs did not give evidence. Some of them did participate in recorded interviews, but, while extracts from these interviews were reproduced in the magistrate's reasons, transcripts of the interviews were not included in the bulky materials provided to this Court.
Section 418 is undoubtedly a difficult provision for judicial officers to work with, requiring intellectual gymnastics in its application, principally because the onus lies on the prosecution to disprove the elements of self-defence - that is, to prove a negative. Yet underlying the provision is a factual scenario that can only truly be known to the defendant. That is the defendant's state of mind - or his or her perception of the circumstances. The prosecution cannot realistically be expected to negative a perception of which it has no knowledge. The issue of self-defence cannot be raised in an evidentiary vacuum. There are a number of ways in which the issue may emerge: for example, through admissible evidence of statements attributed to the defendant outside court; by cross-examination of prosecution witnesses; by the defendant in evidence in the trial; or by witnesses other than the defendant called in the defence case. There may be others. But there must be some evidentiary basis on which a judicial officer may assess the circumstances as perceived by the defendant: see Colosimo v Director of Public Prosecutions (NSW) (2005) 64 NSWLR 645; [2005] NSWSC 854 at [91] ff; on appeal [2006] NSWCA 293 at [20] ff; Douglas v R [2005] NSWCCA 419 at [100]-[101]. That is, if not otherwise, clear from s 419, which imposes the onus of proof on the prosecution in cases "in which the application of [Division 3] is raised".
The paragraphs from the judgment that I have quoted at [24] above are, it seems to me, a powerful rejection of both s 418 questions - that, as the affray made its way up Clarke Street and away from the Doran home, the plaintiffs believed that their conduct was necessary for a s 418(2) purpose; and that, in the circumstances as they perceived them, their conduct was reasonable.
The plaintiffs would have their intoxication taken into account in the determination of the reasonableness of their response. The magistrate did not do so. He was correct not to do so. Even if it could be concluded that, in their intoxicated state, the plaintiffs (or any of them) believed that their conduct was necessary for a s 418(2) purpose, intoxication was not a relevant consideration in the assessment of the reasonableness of their response. The use of a spear gun, the shattering of the utility's windscreen, and the threats to kill, could not, on any view, be a reasonable response to an intruding party that was clearly in retreat. That was when, as the magistrate held, defence turned to attack.
Whether or not the plaintiffs perceived that that conduct was necessary, on no objective analysis could it be said to have been reasonable, and their intoxication did not convert unreasonable responses into reasonable responses.
For these reasons, the magistrate was correct not to take into account intoxication of the plaintiffs on the question of reasonableness of their conduct, in whatever circumstances they perceived. The ground of appeal that asserts error of law in the exclusion of "the role" of self-induced intoxication is rejected.
The question of law stated at [7] above is therefore answered in the negative. That is sufficient to dispose of the appeals of Bailie Doran and Jordan Weeks.
There remains for consideration the fourth question identified on behalf of Chrystian Brunton.
At [215] the magistrate recorded a ruling he had earlier made, to the effect that the evidence against Mr Brunton would be confined to what happened after the Imlay Street group arrived in the utility. He then went on to say: "But that does not exclude Chrystian's own version given in the ERISP from being deliberated."
In [216] he extracted significant portions of the transcript of the recorded interview made by Mr Brunton, which, it may be inferred, related to events before the arrival of the utility. What Mr Brunton there said gives significant insight (in the absence of any rejection of the factual scenario) into what actually happened, and, importantly, into Mr Brunton's state of mind and conduct. He said (inter alia): "I was just pissed off man … I was stressing out and I just wanted to get my aggression out."
It was the use of that material that gave rise to a contention on behalf of Mr Brunton that the magistrate had, contrary to the ruling earlier referred to, taken into account evidence of Mr Brunton's conduct prior to the arrival of the utility. That, it was submitted, raised a question of law.
If [215] and [216] were where it ended, there may have been merit in the argument. But what was contained in [216] must be seen in context. It is merely preparatory to what the magistrate said in the following paragraph, [217]: "Having made those observations regarding Chrystian's earlier conduct there is further evidence of his involvement in an Affray after the ute arrived. He admitted he chased Murray up the road. He admitted to following the group of fathers along Clarke Street and 'around the corner (into Imlay Street)'. He admitted that as the group of fathers 'started yelling shit…he walked up a bit further'. At one point Chrystian was armed with the handle of the spear gun. It looked like a pistol in the dark and he 'just used it to scare them'. In his record of interview Chrystian said 'I was trying to scare and intimidate them pretending it was a pistol' …"
The magistrate did not use Mr Brunton's account of events prior to the arrival of the utility in his decision with respect to Mr Brunton's participation in the affray; he used Mr Brunton's own account of his state of mind prior to that arrival, in order to explain his later conduct. There was not a departure from the ruling he had made.
There was no error demonstrated in the manner in which the magistrate dealt with Mr Brunton's evidence.
Neither of the grounds advanced demonstrates any error of law on the part of the magistrate.
Each summons, accordingly, must be dismissed.
The orders I make are: In relation to proceedings 2018/387743: 1. (1) The time fixed by Pt 51B.6(1) of the Supreme Court Rules 1970 (NSW) is extended to 17 December 2018; 2. (2) Summons dismissed; 3. (3) Plaintiffs to pay the defendant's costs of the proceedings. In relation to proceedings 2019/13069: 1. (1) The time fixed by Pt 51B.6(1) of the Supreme Court Rules 1970 (NSW) is extended to 14 January 2019; 2. (2) Summons dismissed; 3. (3) Plaintiff to pay the defendant's costs of the proceedings.

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Crimes Amendment (Self-defence) Act 2001(NSW)s 3, Sch

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